1. INTERNATIONAL TRANSACTIONS AND COMPETITION LAW

2. Index 1. Why are competition / antitrust issues important? 2. Merger control 3. Distribution systems 4. Cartels and state aids

3. Index 1. Why are antitrust issues important? 2. Merger control 3. Distribution systems 4. Cartels and state aids

4. Why are antitrust issues important? CONSEQUENCES OF INFRINGEMENTS Significant fines Up to 10% of the turnover of the the group + sanctions on directors/managers Civil consequences Nullity of agreements Divestment or mergers Damages: class actions 1 Other risks Exclusion from public tenders Imprisonment of directors/managers EE.UU/UK + disqualification

5. Why are antitrust issues important? 1 EUROPEAN COMMISSION FINES COMPANYYEARTOTAL FINE (MILLIONS EUR) Intel / Abuse of dominant position20091,060 Saint Gobain / Cartel2008896 E.ON / Cartel2009553 GDF Suez / Cartel2009553 Microsoft / Abuse of dominant position2008497 ThyssenKrupp / Cartel2007479 Siemens AG / Cartel2007396

6. Index 1. Why are antitrust issues important? 2. Merger control 3. Distribution systems 4. Cartels and state aids

7. Merger control 2 Key issues What is merger control? When does a merger exist? Where must the merger be notified? How must the notification be done? Which are the assessment criteria? Time frame

8. Merger control 2.1 What is it? Formal revision procedure Authorisation usually prior to execution... attention to for gun jumping! Almost 100 countries with different merger procedures And supranational authorities: EU v authorities of the 27 EU Member States (coordination mechanisms)

9. Merger control 2.2 Concept may differ from country to country Stable change in control (EU) Types: Mergers Asset/share acquisitions Trademark acquisitions Management contracts Acquisition of goodwill Joint ventures: mergers or restrictive agreements?

10. Merger control 2.3 Where to notify? Determine whether thresholds are met in the countries where the target or the parties (JVs) operate If the EU thresholds are met, Member States do not have jurisdiction Types of threshold: “Easy”: turnover “Difficult”: market share..... of the “affected companies” (including the business group)

11. Merger control 2.3 EU: (i) EUR 5,000M worldwide turnover of all the affected companies; + (ii) at least 2 of the companies’ turnover in EU > EUR 250M; (iii) 2/3 exception UK: Target’s turnover in UK > GBP 70M // and voluntary notification if there is an overlap and >25% market share Spain: alternative thresholds: Turnover in Spain > EUR 240M of the business group affected + at least 2 companies must each have > EUR 60M 30% market share (no overlap needed) Where to notify: EU- UK-Spain?

12. Merger control 2.3 Complex thresholds, reviewed annuallly Value of the transaction: above - 63,4 MUSD or - 254 MUSD, in assets value or net annual sales Where to notify? US

13. Merger control 2.4 Official form: Ordinary Abbreviated Procedure: Pre-notification First investigation phase Second investigation phase (complex cases) Spain: Third phase (Council of Ministers) How to notify?

14. Merger control 2.5 Does the merger “significantly” hinder competition? Substantially impeding effective competition (SIEC test), i.e. creation or strengthening of dominant position Possibility of increasing prices, discriminating between clients, forcing out competitors Excessive vertical integration Which are the assessmen t criteria? Remedies: commitments v conditions

15. Merger control 2.6 Early identification of notification requirement: Contract drafting Identification of jurisdictions Notification preparation (complex) Risk/convenience of file being refererred between authorities “Second phase” risk Calendar Coordination with takeover calendar

16. Index 1. Why are antitrust issues important? 2. Merger control 3. Distribution systems 4. Cartels and state aids

17. Distribution systems 3 EU:Automatic authorization: - Exemption Regulation 2790/1999 (under review): - Max. market share: 30% - No black clauses: (i) market distribution; (ii) resale prices - If exclusive, 5 years; extension accepted only with express agreement - “Self-assessment” of agreements

18. Index 1. Why are antitrust issues important? 2. Merger control 3. Distribution systems 4. Cartels and state aids

19. Cartels and state aids 4 “Secret” agreements between competitors (conspiracy) to fix prices, distribute markets, boicot, fix tenders Due diligence and reps & warranties (risk of repayment aids) Cartels Impact of leniency programs Reps & warranties in corporate acquisitions State aid

20. Thank you!